A Dispute Over Wording, A Difference in Ownership

When handling legal documents, contracts, or courtroom arguments, lawyers repeatedly scrutinize the meaning and usage of every single word, to ensure their language is precise and unambiguous, and to avoid any loopholes or ambiguity. This intense attention to detail is often described as "nitpicking over words," but in reality it exists to protect the parties' rights and the fairness of the law.

The dispute in the following inheritance case had its roots precisely in this problem: the will was not prepared by a lawyer and lacked independent professional advice, leaving its wording insufficiently rigorous or clear — which in turn led to disagreement among the heirs over how the text should be interpreted, and ultimately sparked unnecessary conflict and litigation.

In this ruling, handed down in early April — McCubbin v. McCubbin, 2026 ONSC 2079 (CanLII) — the applicant married her husband in 2009, and the couple lived together in Peterborough, Ontario.

The husband passed away in 2021. During his lifetime, he had written a will in his own hand — and it is this will that lies at the heart of this case.

The applicant and the respondents (the deceased's two daughters from a previous marriage) agreed that the will was legally valid. Their dispute concerned how two particular clauses in the will should be interpreted.

The first clause read: "Upon my death, my spouse shall assume ownership of [address] and its contents."

The second clause read: "Should my spouse predecease me, my two daughters shall divide equally the net proceeds remaining after the above residence is sold and all debts are settled."

The applicant argued that the first clause clearly granted her full ownership of the home, and that the second clause applied only in the scenario where she predeceased her husband — a conditional, alternative arrangement.

The two daughters took a different view. They argued that the two clauses should be interpreted as granting the applicant only a "life interest" in the home, with the proceeds of its eventual sale to be divided equally between the two daughters after her death. They contended that only this interpretation would give effect to both clauses simultaneously.

The judge ultimately adopted the applicant's interpretation.

In its legal analysis, the court emphasized the "golden rule" of will interpretation — that the court must, based on the wording of the will, ascertain and give effect to the testator's true intention. The court must consider the will's content as a whole, and, applying the "armchair rule," take into account the circumstances at the time the will was made, in order to understand the testator's intent from his own perspective.

The judge noted that admissible extrinsic evidence is limited to objective background circumstances — such as family relationships, the state of the estate's assets, and the context at the time the will was made — and does not extend to the testator's own direct statements about how he intended to distribute his property. Accordingly, the respondents' account, along with that of their husbands, that the testator had once said "the house will eventually go to the daughters," was ruled inadmissible.

Regarding the first clause, the key issue turned on the phrase "assume ownership." The court found that, in ordinary usage, this phrase denotes full ownership, not merely a right of residence. Even though the testator was not a legal professional, he would still have understood the difference between "ownership" and merely "living" somewhere.

The respondents argued that the testator may not have understood legal terminology, but the court rejected this argument, finding that "assume ownership" carries a clear meaning in everyday language.

As for the second clause, the court found that its most reasonable interpretation was as a fallback arrangement — applicable only if the applicant predeceased her husband — rather than as a limitation on her rights.

The judge also noted that there was no evidence to suggest the testator intended only to allow his wife to live in the property without owning it; on the contrary, the wording itself clearly expressed an intention to transfer ownership.

Speaking of "intention" — the two daughters' position on how the will should be interpreted in this case is, frankly, not hard to understand. Unable to change the contents of the will their father had already made, their only avenue was to argue over the wording itself, in an attempt to secure a share of the property. In truth, the wording of the will already reflected the testator's wishes with reasonable clarity; had the will been drafted by a lawyer, the credibility that comes with proper legal drafting would have made it far harder to challenge in this way.